Opinion of the court delivered by

For the purposes of the present inquiry the application of Jacob Voorhees for his discharge as an insolvent debtor at January Term 1842 is admitted to have been regular. It is also admitted that a legal and valid discharge of the applicant as an insolvent debtor upon the petition made at January Term 1842, in compliance with the condition of the bond given to Hoyt, Bogart & Co. under an arrest at their suit would have been a complete fulfilment and discharge of the condition of the bond upon which the present action is brought.

The only question fairly presented by the case and seriously discussed by counsel upon the argument, grows out of the failure of the court to pronounce any judgment either for or against the discharge of the petitioner on the 7th of March 1842, in consequence of the court being equally divided in opinion. On the part of the plaintiffs it is insisted that by such division the applicant was refused a discharge, and that by the terms of his bond he was bound to surrender himself immediately thereafter to the sheriff, or keeper of the gaol of the county, and that on *80bis failure so to do, his bond became forfeited. The counsel of the defendants on the other hand, insist that until there was a direct refusal by the court to discharge the applicant, and until he was remanded by the court, he was not obliged to surrender himself. That there is and can be no refusal to discharge Under the act, except by the order of the court itself. That it must appear affirmatively to the court that the applicant has concealed or kept back part of his property, before the discharge can be refused, or the applicant remanded to prison. That the judgment 'of the court upon the petition for a discharge as an insolvent debtor, is a final judgment, and cannot be pronounced, much less inferred, upon a division of the court. These suggestions are certainly not without weight, and they derive much countenance from the phraseology, especially of the fourth section of the act of 1830 (Elm. Dig. 257 § 32), under which the application was made.

Still, this act must be construed in reference to the act of 1795, and it is manifest from the whole scope and phraseology of the act that the onus of establishing his title to a discharge, rests upon the debtor. He is the actor. It is not for the creditors to establish to the satisfaction of the court that he has acted fraudulently. He is asking at the hands of the court relief from all personal liability for his debts. As a condition of that relief the court are to “ be satisfied that the conduct of the debtor has been fair, upright, and just.” Then, and then only, can the court order a discharge. So when there is a trial by jury. Although the creditor undertakes to prove affirmatively that the debtor has concealed and secreted some part of his estate, still the affirmative of the issue is upon the debtor, both in form and in substance. The debtor is by the terms of the act required “ to prove in evidence and maintain the truth and legality of his case according to the issue on his part joined.” Elm. Dig. 252 § 7. Failing to support the issue upon his part either before the court or before the jury, he is not entitled to his discharge. • Williamson v. Booream, 5 Halst. 351.

In the present case, the court being equally divided in opinion, the debtor had failed to satisfy the court that his conduct had been fair, upright and just, and consequently he was not *81entitled to his discharge. Upon an equal division of the court, a re-argument of the cause would manifestly have been proper. And had an application been made for that purpose, it is fair to presume that the court in the exercise of a sound discretion, would have continued the ease and. directed a further hearing. But no such application was made, nor was any order for this purpose made by the court. The debtor, however, did demand a trial by jury, which was denied by the court. If in this the court (which is not admitted) committed an error, the debtor was not without remedy. But without questioning the legality of that order, the debtor applied at the next term for a new hearing. Under these circumstances, the failure of the court to discharge the debtor was tantamount to a refusal to discharge. Upon such refusal, the defendant was bound by the terms of his bond to surrender himself immediately thereafter to the Sheriff, or keeper of the gaol of the county. Failing so to do his bond became forfeited, and the plaintiffs entitled to their action.

But it is said that the debtor was not bound to surrender himself until remanded by the court. That it was no less obligatory upon the court to remand, than upon the debtor to surrender himself: And that in th'fe absence of the order of the court, the sheriff or gaoler had no authority to receive or detain the debtor in custody. This very point came under consideration, in the case of 3 Green 40, Woodruff v. Barrett, and was directly involved in the decision of that cause. The court there refused to discharge the debtor, upon the ground that the bond given by him on his arrest was insufficient; but made no order remanding the applicant or committing him to the custody of the sheriff. The debtor, however, in discharge of the condition of his bond, voluntarily surrendered himself to the sheriff. The sheriff received him into custody, but afterwards permitted him to go at large, and for so doing an action was brought against the sheriff for an escape. It was objected, that (he officer had no authority to receive or detain the debtor in custody; no order of the court having been made for that purpose. But the court held otherwise, and the judgment was subsequently affirmed upon writ of error. The Chief Justice in delivering his opinion, says : “ The defendant among other *82things was bound, if he did not obtain his discharge to surrender himself to the sheriff. When the court refused to discharge the debtor he had an election either to forfeit his bond by continuing at large, or to save it by an immediate surrender of himself to the sheriff. The previous proceedings and refusal by the court to discharge the defendant is a virtual commitment, or at least sufficient record authority to justify and make it the duty of the sheriff to receive and detain the defendant in his custody.”

Admitting however, that there was no final disposition of the cause-at the special term in March — that the decision of the court left the cause undecided and pending — that the cause was regularly continued without any order of the court for that purpose, and that the subsequent petition at June term was authorized by law, still the plaintiff’s right of action remains unimpair-, ed. For upon this latter petition the court being of opinion that the cause had been already finally disposed of, dismissed the application and refused to hear the same. The debtor nevertheless failed to surrender himself into custody.

There can we think, be no question but that this last order of the 13th of June, whether legal or illegal, valid or invalid, so long as it remained in force was a final disposition of the cause. That order still remains unreversed by any appellate or superior tribunal. The subsequent proceedings in the same court upon another petition can in no wise affect it. The debtor therefore was refused his discharge by the court as an insolvent debtor. Upon such refusal, he did not, in compliance with the condition of his bond surrender himself immediately thereafter to the sheriff or keeper of the gaol of the county of Somerset. By such omission the bond, became forfeited, and the plaintiffs entitled to their action.

Let the judgment be affirmed.

Whitehead and Carpenter, J. J. concur.

Judgment affirmed.

Cited in Race v. Dehart, 4 Zab. 40; Steelman v. Mattix, 9 Vr. 252.